(CNSNews.com) - The future of the military's "Don't Ask, Don't Tell" policy was cast into doubt on Wednesday.

The Ninth Circuit Court of Appeals in San Francisco, Calif., ruled that it is no longer enough for the military to state the policy -- which says that "homosexuality is incompatible with military service" -- when it discharges members of the armed services it discovers to be homosexuals.

In a split decision, a three-judge panel ruled that the U.S. Air Force will have to prove why it discharged Margaret Witt, an 18-year Air Force nurse, under "Don't Ask, Don't Tell."

Witt, a major in the Air Force Reserve, was discharged in 2004 when it came to light that she had had a lesbian relationship from 1997 to 2003 with a civilian woman. She filed suit in 2006 challenging her ouster from the Air Force.

The federal district court in Tacoma, Wash., held that "Don't Ask, Don't Tell" policy was not subject to judicial review, and the Air Force didn't have to prove anything other than that she was a homosexual.

But the Ninth Circuit, citing the Supreme Court's 2003 Lawrence v. Texas decision, which struck down state sodomy laws, sent the case back to the lower court, ordering it to reconsider the constitutionality of "Don't Ask, Don't Tell."

If the nation were best defended by an army made exclusively of 3-legged dwarfs, that’s the one I’d want. If we lose a war, it’s no consolation that we, at least, were non-discriminatory in our recruiting practices.

celtic gal: “Nothing the 9th Circus Court does is a surprise...anything immoral goes with this lot.”

Perhaps you don’t realize they think you’re immoral for opposing them. In their eyes, they are only trying to correct past wrongs, and you’re the judgmental, evil one if you speak against them. Unfortunately, even some FReepers support the rights of homosexuals to marry. They say it’s a matter of civil rights and individual liberty. It is sad. We have reached the point where perversion is called good and good is called evil. God save us!

11
posted on 05/21/2008 4:50:31 PM PDT
by CitizenUSA
(Republican Who Will NOT Vote McCain!)

To think of how Scalia and Santorum were scorned and ridiculed when they warned where Lawrence v. Texas would lead.

I bet the Ninth Circuit can't wait for a gay marriage case and use Lawrence vs. Texas. We might have one coming up to bat. The referendum to the CA state constitution banning gay marriage passes but the next day someone sues in federal court citing Lawrence vs. Texas.

Would it be improper for the Air Force to discharge someone after 18 years of service, if they knew for years that person was a lesbian, for the purpose of denying that person their military retirement benefits?

Wikipedia and all other commentators are going to have to hurry to revise statements that it is “highly unlikely” that courts will try to apply Lawrence to service in the military:

“Even though not decided upon equal protection grounds, sexual liberty supporters still hope that the majority decision will call into question other legal limitations on same-sex sexuality, including the right to state recognition of same-sex marriages, and the right to serve in the military. The latter appears highly unlikely in light of the Supreme Court’s recognition that “the military is, by necessity, a specialized society separate from civilian society.”[15] The United States Court of Appeals for the Armed Forces, the last court of appeals for Courts-Martial before the Supreme Court, has upheld that Lawrence applies to Article 125 of the UCMJ, the article banning Sodomy. However, the court has twice upheld prosecutions under Article 125 (the article prohibiting sodomy), in United States v. Marcum and United States v. Stirewalt, finding that the article was “constitutional as applied to Appellant”[16][17] and when applied as necessary to preserve good order and discipline in the armed forces. Although no court has interpreted the U.S. Constitution to require states to allow same-sex marriage, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Dept. of Public Health that the constitution of the Commonwealth of Massachusetts required that same-sex couples be given full marriage rights. The decision did cite Lawrence, which was decided some four and a half months earlier, but did not draw on its direct precedential authority, as Goodridge was decided on exclusively state constitutional grounds. On the other hand, several federal district and circuit courts that have considered the extent of Lawrence have held that it is an extremely narrow holding under rational basis review. These courts have ruled that Lawrence does not call into question laws regulating marriage, nor does Lawrence strike down other regulations related to homosexuality. (See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Lofton v. Sec. of Dept of Children & Family Services, 358 F.3d 804 (11th. Cir. 2004); Williams v. Attorney General of Alabama, 378 F.3d 1232 (11th Cir. 2004).) The Supreme Court has not yet accepted any cases that present an opportunity to further define the implications of Lawrence....”

What is a civilian court doing meddling in military matters? Since they are lawyers and leftists with disordered minds it is no surprise. But where is the "adult leadership" in this country? That court needs a slapdown for sure!

"The latter appears highly unlikely in light of the Supreme Court's recognition that "the military is, by necessity, a specialized society separate from civilian society"

This is what Wikipedia's citizen editors were saying before now about why it was supposed to be "highly unlikely" that Lawrence could be applied to military service issues..... now we will have to see whether the SCOTUS still recognizes the important of the US military as "by necessity, a specialized society separate from civilian society" -- or will they join in the leftist trashing of the military by erasing the basic differences between military and civilian institutions???

Normally, we don't need to worry much about a dumb decision by the Ninth Circus Court of Appeals. It is the most reversed Court of Appeals in the known universe. However, in this case, the Ninth is relying on a prior (5-4) decision in the US Supreme Court.

The sodomy decision from the US Supreme Court is coming back to haunt the whole American judiciary, exactly as Justice Scalia then predicted in his sharp dissent.

For all who are intending to sit out this election, take a good look at Osama’s potential SC justices IF he wins the WH...THAT SHOULD SCARY THE CRAP OUTTA U! And we are taking for LIFE! God help us! Please!

Would it be improper for the Air Force to discharge someone after 18 years of service, if they knew for years that person was a lesbian, for the purpose of denying that person their military retirement benefits?

If that (denial of retirement benefits) could be shown to be the purpose of the discharge, I would think that improper, yes, regardless of the excuse they used to justify the discharge. I don't know what the regulations are, however.

Why do you ask?

24
posted on 05/21/2008 5:05:18 PM PDT
by ThePythonicCow
(By their false faith in Man as God, the left would destroy us. They call this faith change.)

I agree with the Nine Circus. If its permitted for gays to marry, then there's no reason they have who they are in the U.S military. I've always thought "don't ask, don't tell" is morally offensive. Its the equivalent of a lie and doesn't change the fact that you are who you are but you not allowed to acknowledge it.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

I know it seems very easy to slap down the Ninth Circuit, and as retired military I have very grave concerns about the impact of explicit homosexual behavior on troop moral. However, the opinion seems well written and does make some valid points: WITT v. DEPARTMENT OF AIR FORCE

It does sound like this woman kept her affairs to herself and strictly honored the "don't tell" part of the policy. All the Court has decided is that the discharge is not automatic, that judicial review of the Air Force's application of the policy in this case is appropriate (that is what Due Process means), and that it actually has to hear and decide the case based on law. That is not so bad, actually.

From the statement of facts in the decision "While serving in the Air Force, Major Witt never told any member of the military that she was homosexual. In July 2004, Major Witt was contacted by Major Adam Torem, who told her that he had been assigned to investigate an allegation that she was homosexual. She declined to make any statement to him."

So not only did she not violate the don't tell part of the policy, the Air Force itself violated the "don't ask" part.

It’s amazing, isn’t it? You can serve your country without any problems for 18-years and then have the floor ripped out from under you because you’re gay. And two years before retirement benefits kick in!

Seems kinda crooked- And I’m as right wing gun nut as
anyone. Many base there ideas on homosexuality
on the Bible which is the authority I think....
But there the writer used the definate article in
reference to men.... not the ladies.....Ed

All men are created equal. True. But that doesn’t allow you to do whatever you want, nor does it require society to validate deviancy. Homosexuality is not only a spiritual abomination, it’s disfunctional behavior, a social ill. Homosexuals should have the right to live their lives as they see fit, but they shouldn’t be entitled to special treatment. Sexual orientation is NOT a protected class under the US Constitution, nor should it be.

I understand many libertarians oppose any laws that legislate morality, but that’s an extremely naive position. “All men are created equal” itself involves a moral judgment. Traditional morality, including monogamous, heterosexual marriage, builds society up. Immorality tears it down.

Of course, some of you don’t care. You’d toss out any law that restrains your ability to do pretty much whatever you please, even though you will ultimately tear this society apart. Individual liberty and a free society only works when people govern themselves. What many really want is anarchy, and they are willing to do whatever necessary to have it.

38
posted on 05/21/2008 7:54:44 PM PDT
by CitizenUSA
(Republican Who Will NOT Vote McCain!)

Gays simply don’t belong in the military or anywhere else people are in close contact with one another. I find it all I can do to restrain myself from committing assault at the gym when some guy is staring at me in the shower. Gays should stick to sodomizing each other and stay away from the rest of us.

If its permitted for gays to marry, then there's no reason they have who they are in the U.S military

There are some pretty good reasons not to allow homosexuals to serve -- like the sexual privacy of the heterosexual military personnel. I'm sure quite a few don't want to have room, shower, undress in front of or share a foxhole with someone that might have sexual attract to them.

45
posted on 05/21/2008 11:30:32 PM PDT
by Ol' Sparky
(Liberal Republicans are the greater of two evils)

I cannot see McCain being able to get any decent justice nominee through. The Senate will reject anyone he nominates, except, maybe Hillary Clinton.

A conservative President might consider letting the Democrats keep rejecting nominees and let the vacancies linger if the justices that retire are liberal ones. Unfortunately, McCain isn't a conservative.

46
posted on 05/21/2008 11:34:23 PM PDT
by Ol' Sparky
(Liberal Republicans are the greater of two evils)

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